Home Office advice to Police Forces in the UK is wrong in law and likely to leave cash-strapped police authorities incurring some very large legal bills over the coming months.
That was the view given to El Reg today by Matthew Ryder, a barrister specialising in police powers and human rights.
Following the recent ruling by …

On the Other Hand

Failure on the part of the police to take the swiftest possible action against terrorists could cost the United Kingdom far more dearly, as it might mean that thousands of Britons are killed in a terrorist act that could have been prevented. Compared to lives lost in a terrorist attack, money lost in a lawsuit is a mere trifle - as if, of course, a terrorism suspect is in a position to sue anyone.

I would think that the net result of this could be the UK's departure from the European Community, if the price of membership is anything which could compromise, in any way, its ability to defend itself against terror.

ban

Terrorism suspect?

"...as if, of course, a terrorism suspect is in a position to sue anyone."

You do realise, don't you, that (assuming you live in the UK), you are already a terror suspect merely for existing? Even moreso should you choose to do anything with your aforementioned existence, like walk down a street or, God forbid, take a photograph.

Lol

You've fallen for it then, here's an idea buy a life insurance policy for say 10 million and buy a lottery ticket every week, you got more chance of winning the lottery then being involved in any sort of terrorist attack.

@John Savard

Thousands of people die each year from MRSA, which the government could prevent, but don't. In 2008 over 4000 people died from being given the wrong prescription. Thousands die each year from cancer, yet much of the research is funded by charity rather than the government.

So a couple of hundred deaths at the hand of a terrorist is pissing in the wind, and isn't a reason to turn the country into a police state.

You are ...

... a troll, aren't you? No-one can really believe that "thousands of lives could be lost in a terrorist attack" that could have been prevented by the use of s44 by some brainless plod on the street. The only way such an attack (which I maintain has such a small chance that it should not even really be contemplated by sane people) would be thwarted is by intelligence and covert ops.

zappa

This sounds familiar.

So what you're saying is that it's the EU that is trying to save us from our own government. It should be familiar to all, seeing as the response is identical to the ruling on keeping DNA illegally and the EU slapping the Government for ignoring the illegal BT/Phorm wiretapping.

The House of Lords is supposed to be a check on the Government, but it appears it's so full of Labour's cronies that it's not up do the job. As long as we remain in Europe we may have a chance of getting through this.

Post-Enlightenment era of idiocy

"So what you're saying is that it's the EU that is trying to save us from our own government."

No. The European Court of Human Rights, the ultimate court for the European Convention on Human Rights, a treaty signed after WWII and drafted by a British civil servant. So a case of a less-hysterical era trying to save us from an post-Enlightenment era of idiocy.

Conspiracy, conspiracy, aggh jim lad conspiracy

[F1(1)Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a)will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.]

F2(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In this Part of this Act “offence” means an offence triable in England and Wales F4. . ..

Citizens Arrest

@gardener21

Yeah, realised that after posting. I suppose we could be laugh at the irony of UK Gov ignoring the ECHR, especially as the UK had a massive amount of input when it was drafted. Well, it's either that or weeping silently.

@John Savard

You, sir, are either trolling or in dire need of a clue. Although a number of their predecessors were little better, our current government has been responsible for some of the most ill-conceived, badly-drafted and downright incompetent legislation ever to be enacted. Excessive police powers and the curtailment of civil liberties cannot be justified by raising the spectre of terrorist bogeymen or by wailing that we should "think of the children" or in any other of the countless ways that our money-grubbing political leaders and their lickspittle lackeys are relying upon to brainwash masses of people into sleepwalking towards a latter-day police state.

Having said that, I find it rather depressing to note that their tactics seem to be working anyway.

It is as sad as it is deplorable

Hundreds of thousands of Britains and folk of other Nations have given their lives and more in the past 100 years to defend the liberties of this countries populace against tyrannical forces from abroad and here we are now relying on tyrannical forces from abroad to protect the lives and liberties of Britains.

A sage once said - I believe - "the price of freedom is eternal vigilance". If this infringement is allowed to stand we in Britain will truly have become the "Big Brother" generation were we are prepared to look on and take vicarious, distracted interest rather than become involved and take control of our society - and we will deserve it. But not our forbears or our offspring.

Almost none of the political establishment (MPs and Civil Servants) are working against it because Turkeys don't vote for Christmas - just as the political establishment wont vote for a power and budget cut even if there is another solution to a non-problem. Will they, Sir Humphrey?

Citizen's Arrest

When i wrote about this issue last week, i raised - albeit slightly tongue in cheek - the question of carrying out a citizen's arrest. i said then, echoing advice from a criminal lawyer, that such a course of action was highly dangerous legally and not something to be advised lightly.

a police officer attempting to detain someone unlawfully may be carrying out an act of unlawful detention. That is a criminal offence and for that, they could be arrested.

However, when it comes to carrying out an arrest, there is a very clear distinction between the arrest powers with which the police are endowed and the powers with which an ordinary member of the public is endowed. For the police to arrest someone they need only reasonable grounds for so doing.

Suspicion that someone has just committed a crime are reasonable grounds, so police officers may arrest on suspicion.

The ordinary member of the public can only arrest where the crime in question has actually been committed. How do you know its been committed? When a court says it has. Therefore, even if you saw someone removing goods from a shop and making off thru the door with them, be very careful. They MIGHT have merely forgotten to pay...in which case, whilst a police constable can validly carry out an arrest in such circs, any arrest YOU carry out would be unlawful detention and chances are YOU would end up in the dock.

Worse: case law contains various examples of the consequences of someone making an unlawful arrest. Individuals are entitled to resist unlawful arrests/detentions - and that resistance may include some degree of violence.

Yes. That applies to the police too...but how sure would you be that after the event, you can prove that you resisted an unlawful s44 arrest and therefore hit the police officer lawfully...as against the polcie story that you hit them and they then arrested you for assault? You'd need clear video recordings of the event, plus some good credible witnesses.

Other slight prob with making a citizen's arrest: the offence must be punishable by a sentence of at least five years. How well do you know your sentences? If you see a crime being committed, is the max penalty 5 years? 10? 3?

Get it wrong, and your citizen's arrest fails and opens you to all the consequences noted above.

So yes. As thought excperiment, arresting a police officer makes for an amusing scenario. As practical course of conduct, it just ain't.

Further restriction for the citizen arrest

I seem to remember that you cannot perform a citizen arrest if there is a constable around: you must notify him of the offense instead. Whether the policeman you are arresting counts or not is debatable. What is less debatable is that these people are always seen in pair (at least). So in real life you just CANNOT perform a citizen arrest on a policeman in duty.

@PDC

In terms of numbers killed in the UK your'e a bit high. the 7/7/05 killed 57 (Including the Brazillian electrician who looked a bit foreign). The IRA shut down in 1997 and the UDA at the end of last year.

For a comparable death toll you need to be looking at botched DIY (50-70) and farm accidents (also about 70 a year) both according to RoSPA. I'd add children who die on the at-risk registers of local authorities, but that's about 10x higher.

And remember a disproportionate, extreme response with a cowered populace and draconian "security" powers issued is *exactly* what the terrorist wants.

Flashback to Stuart times...

"...they responded by claiming that their own legal experts (Counsel) had advised them that even where a law was itself unlawful, a public official would not be acting unlawfully if they made use of it."

As I understand it, that basically means: "the laws are for you peasants to obey; we rulers are above them".

I thought Sir Edward Coke and his successors had succeeded in making it clear that "be you never so mighty, the law is above you". The principle was eventually brought home to King Charles I by chopping off his head. I hope such radical measures will not be required in our time.

Spotted your mistake.

The Home Office's counsel and its advice...

...is, if my experience with lawyers is any guide, worth exactly nothing.

Lawyers are very well aware who's paying them and, like the designers of "Japanese" gardens, tend to give you what they think you want.

In all likelihood, the Home Office turned to its pet poodles among the legal profession for the nonsensical counsel they received. No other response could be expected under the circumstances.

Legality is of dubious worth anyway. There have been more than a few seriously bad dictatorships and police states that went to some trouble to give the appearance of legality to their actions. What's more the issue is right vs wrong, with lashings of old-fashioned morality on the side. Funny that the Son of the Manse doesn't seem to get that there's a moral angle to government as well as a legal one.

Labour in a tail spin

> that force may argue that "they were only following Home Office guidelines". A court may agree with this position

Or it may take the view that the police have "operational independence", as the Liebores have alleged for years. That view would be supported by the fact that "guidelines" in legalese does not mean "legally necessary", merely "legally compelling". The distinction is analogous to (I would say derived from) logic. A fact can be a compelling reason for drawing a conclusion, but that does not entail that that the conclusion is logically necessary, i.e. that it is necessary for you to draw the conclusion if you are being logical (rational) . When you are compelled to do something, it is not a foregone conclusion that you will in fact end up doing that thing.

> or – since the actions of individual police forces are the responsibility of their respective chief constables – a court could decide that the force had acted negligently in not taking advice for itself.

It would do no harm to send a hardcopy of this piece to each Chief Constable, special delivery to be signed for. Should the case go against the police, this evidence could be very helpful in establishing exemplary damages.